Hussein Mohammed Semeda, R (on the application of) v The Secretary of State for the Home Department

In determining an application for leave to remain as a stateless person, the decision maker must apply paragraph 403 of the Immigration Rules consistently with Article 1(1) of the United Nations Convention Relating to the Status of Stateless Persons. The decisive present-tense question is whether the person is considered a national by any state under the operation of its law.

The enquiry must address each component of that definition. It may require consideration of both foreign nationality legislation and the foreign state's practice. A mere prospective claim to nationality is insufficient. Published caseworker policy creates a duty to give effect to its terms unless there is good reason to depart. The decision maker must also take reasonable steps to obtain relevant information where appropriate.

The applicant sought judicial review of the Secretary of State’s refusal of his application for limited leave to remain as a stateless person under paragraph 403 of the Immigration Rules. The Secretary of State accepted that he was a Kuwaiti Bidoon but concluded that he was documented and had a claim to Libyan nationality through his mother.

Permission was granted by His Honour Judge Russell QC. The applicant contended that the Secretary of State had failed to follow the published instruction on statelessness applications, failed to make appropriate enquiries, and acted unlawfully in relying on an erroneous understanding of Libyan nationality law.

The central issue was whether the refusal lawfully determined whether the applicant was presently considered a national by any state under the operation of its law.

1. The judicial review was granted and the refusal was quashed. Paragraphs 401 to 403 of the Immigration Rules operate in harmony with Article 1(1) of the United Nations Convention Relating to the Status of Stateless Persons. In every statelessness case, the decision maker must address whether the person is considered a national, by any state, under the operation of its law: [2015] UKSC 19.

2. The enquiry is directed to present recognition by the state concerned. It is not a historical exercise or a forecast of whether nationality might later be obtained. A conclusion that a person has a claim to Libyan nationality did not answer whether Libya recognised him as a national when the decision was made. The state’s practice, as well as the text of its nationality law, may require consideration.

3. The Secretary of State was required to give conscientious effect to the published instruction on statelessness applications, subject to its flexibility and any justified departure. The instruction required the caseworker to consider research and enquiries where the applicant could not obtain relevant information. There was no evidence that those choices had been conscientiously considered, no justified departure, and no basis for treating further enquiries as inevitably pointless.

4. Public-law decision making also required reasonable enquiry and consideration of material matters. The decision maker failed properly to address the previous judicial determinations and made an erroneous legal assessment of Libyan nationality law. On the evidence, descent from a Libyan national required ten years’ residence in Libya; the applicant was therefore not a Libyan national.

5. The Secretary of State’s decision was quashed. The applicant was awarded costs, to be assessed if not agreed. The Tribunal cautioned that the renewed process required mutual co-operation by the applicant and the decision maker.

• Upper Tribunal (Immigration and Asylum Chamber): substantive judicial review granted; the Secretary of State’s decision of 29 October 2013 was quashed.
• Permission stage: permission to apply for judicial review was granted by His Honour Judge Russell QC on 27 June 2014.